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HK v Director-General, Department of Justice and Attorney-General[2021] QCAT 130

HK v Director-General, Department of Justice and Attorney-General[2021] QCAT 130

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

HK v Director-General, Department of Justice and Attorney-General [2021] QCAT 130

PARTIES:

HK

(applicant)

 

v

 

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML003-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

20 April 2021

HEARING DATE:

19 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed
  2. Publication of information which may enable the identification of the applicant is prohibited.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – review jurisdiction – blue card – criminal conviction for drug offence – other charges – whether exceptional case warranting departure from the general rule that positive notice must be issued – consideration of risk factors including previous heavy drug use

 Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226, s 580, Schedules 2,3,4 and 5

AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

Chief Executive Officer, Department for Child Protection v Scott (No2) [2008] WASCA 171

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Lister (No2) [2011] QCATA 87

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

M Rajapakse, in house lawyer, Blue Card Services, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

  1. [1]
    This is an application for review of a decision by the Director, Blue Card Services made on 2 December 2019 whereby a negative notice was issued under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (the WWC Act).
  2. [2]
    The respondent’s decision was that the applicant’s case was an ‘exceptional’ case in which it would not be in the best interests of children for the applicant to be issued with a positive notice and blue card.[1]

Legal framework

  1. [3]
    A review of the decision of 2 December 2019 must be made in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  2. [4]
    After the application was filed but before the matter was decided, the WWC Act was amended. The amendments commenced on 31 August 2020. I apply the WWC Act as amended.[2]
  3. [5]
    The Tribunal has all the functions of the decision maker for the decision being reviewed.  The purpose of the review is to produce the correct and preferable decision.  The Tribunal must hear and decide the review by way of a fresh hearing on the merits.[3]
  4. [6]
    The WWC Act deals with the issue of a blue card, or as it is described in the Act “a working with children clearance”.
  5. [7]
    The overarching objective of the WWC Act which the Tribunal must observe is to ensure that the welfare and best interests of a child are paramount, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[4]
  6. [8]
    Under s 221 of the WWC Act the Chief Executive must issue a working with children clearance if the Chief Executive:
    1. (a)
      is not aware of police or disciplinary information about the person;
    2. (b)
      is not aware of a conviction for any offence but is aware of - investigative or disciplinary information, a charge for an offence other than a disqualifying offence, a charge for a disqualifying offence dealt with other than by a conviction; or
    3. (c)
      is aware of a conviction for an offence other than a serious offence.

However, a negative notice must issue if in the latter two cases the Chief Executive is satisfied it is an exceptional case, in which it would not be in the best interests of children if the clearance were granted.

  1. [9]
    The Act does not define an “exceptional case”. It is a matter of fact and degree to be decided in each case having regard to the interests of children.[5] Determining whether an exceptional case exists involves the exercise of discretion by the Tribunal.
  2. [10]
    The Tribunal must consider matters which strongly suggest it is not in the best interests of children that a blue card be granted and which overcome the starting point that someone who is charged with an offence that is not a serious offence will be issued with a blue card.
  3. [11]
    Upon its review the Tribunal must consider the factors in s 226(2) of the WWC Act.
  4. [12]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[6]
  5. [13]
    Neither party bears an onus in determining whether an ‘exceptional case’ exists.[7]

The Decision made 2 December 2019

  1. [14]
    In making its decision the respondent had regard to the applicant’s criminal history and the applicant’s submission and reference. On 19 October 2016 the applicant was convicted of supplying dangerous drugs on 25 April 2016. Charges did not proceed on the basis of no evidence to offer in relation to - possessing dangerous drugs on 25 April 2016, possessing property suspected of having been used in connection with the commission of a drug offence on 25 April 2016 and possession of  a knife in a public place on 25 April 2016.
  2. [15]
    The respondent provided a statement of reasons for the decision, including that:
    1. (a)
      drug related offending occurred as recently as April 2016 when the applicant was aged 28 years old and therefore ought to have been mature enough to understand the criminality of her behaviour.
    2. (b)
      The conviction for distributing drugs is a significant risk factor in light of the applicant’s intended entry into the nursing profession, where she will likely have access to significant volumes of controlled substances.
    3. (c)
      While the charge of possession of dangerous drugs was ultimately discontinued, the applicant has a history of drug misuse and self-medication through the use of cannabis. This demonstrates a lack of judgment and ability to make appropriate decisions in her own best interests and is relevant to her ability to make decisions in the best interests of members of the public including children and young people.
    4. (d)
      The applicant’s actions in engaging in the supply of drugs, raise significant concerns as to her ability to be a sound role model for children and young people placed in her care.
    5. (e)
      Three dangerous weapons were stored in the family vehicle, where they could have been accessed by the applicant’s young children.  This raises concerns about the applicant’s ability to provide a safe environment for children and young people in her care.
    6. (f)
      It is a significant risk factor that the applicant stated that she was an active drug taker for some time. Although the applicant attended a six week rehabilitation course to address her substance misuse, the applicant failed to provide submissions regarding the strategies she learned from that course, the triggers she identified and the way she now manages those underlying reasons for substance abuse.
    7. (g)
      The applicant disputes facts in the police material and has failed to take responsibility for the supply conviction. This demonstrates a lack of insight into her actions and their likely effect on children.
    8. (h)
      Whilst taking into account the applicant’s submissions and supporting reference, the concerns raised on the material before the decision maker are not mitigated.

Information for consideration

  1. [16]
    By s 226(2) the Chief Executive, and on review the Tribunal, must have regard to the following in deciding whether or not there is an exceptional case for the person if the person has been convicted of or charged with an offence:
    1. (a)
      in relation to the commission, or alleged commission, of an offence by the person –
      1. whether it is a conviction or a charge; and
      2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. when the offence was committed or is alleged to have been committed; and
      4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. in the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under s 357, the court’s reasons for its decision.
    2. (b)
      Any information about the person given to the chief executive under section 318  or 319;
    3. (c)
      Any report about the person’s mental health given to the chief executive under section 335;
    4. (d)
      Any information about the person given to the chief executive under section 337 or 338;
    5. (e)
      Any information about the person  given to the chief executive under the Disability Services Act 2006, section 138ZG;
    6. (f)
      anything else relating to the commission, or alleged commission, of the offence which the chief executive reasonably considers to be relevant to the assessment of the person.
  2. [17]
    The matters relevant to this application, raised by section s 226 of the WWC Act are addressed below.

Criminal history

  1. [18]
    The applicant’s relevant criminal history is:
    1. (a)
      19 October 2016 – Charge of supplying dangerous drugs. Convicted and entered into a $300 recognisance of her own undertaking and was ordered to be of good behaviour for four months. No conviction recorded.
    2. (b)
      The prosecuting authority discontinued proceedings against the applicant after offering no evidence in relation to charges of ‘possession of a knife in a public place or school’, possessing property suspected of having been used in connection with the commission of a drug offence on 25 April 2016, and possessing dangerous drugs on 25 April 2016.

Traffic history

  1. [19]
    The applicant has an extensive traffic history over a period from March 2005 to March 2017, including five offences of speeding by less than 13 km/h.

Nature of offences

  1. [20]
    The offences of which the applicant has been convicted or charged are not serious offences nor disqualifying offences under the WWC Act.[8]

Relevance to employment or a business which involves children

  1. [21]
    The conviction and charges did not arise in connection with employment or a business which involves children, however the conduct giving rise to the conviction and the alleged conduct the subject of the charges would have a serious impact on any children with whom the applicant may have contact in the course of employment or a business.

Other relevant matters obtained by third-party notices to produce

Material produced by West Moreton Hospital and Health Service

  1. [22]
    The applicant attended at the Ipswich Hospital on 2 August 2019 to address ice use. Progress notes produced by the West Moreton Hospital and Health Service record that on 2 August 2016 the applicant started using methamphetamine at the age of 27 and last used two weeks prior. The applicant is recorded as using methamphetamine every day for the past 10 months.
  2. [23]
    The progress notes for 2 August 2016 also deal with the applicant’s mental health referring to conditions of bipolar and depression. Two weeks previously she had been admitted to the PA Hospital for attempted suicide. She spent one night in HDU (High Dependency Unit) and then was transferred to Logan Mental Health Unit where she spent one week.
  3. [24]
    The notes refer to the applicant being separated from her husband and that he is also seeking assistance for ice use.
  4. [25]
    Psychologist consultation notes dated 2 September 2016 record that at that time the applicant was experiencing suicidal thoughts every few days. Some of the applicant’s history is recorded by the psychologist including that the applicant met her husband in 2008 and that the “relationship has been drug dependent initially cannabis until two years ago when switch made to methamphetamine”. The notes also record that the applicant had a difficult childhood, attempting  suicide around the age of 13 years and then commencing cannabis use and alcohol consumption.
  5. [26]
    This material suggests the applicant has been a user of cannabis since 2008 (and earlier as an adolescent), and a user of methamphetamine from 2014.
  6. [27]
    A report from the Senior Psychologist, West Moreton Alcohol & Other Drug Services, dated 17 October 2016, notes that on 1 September 2016 the applicant completed the Back in Control Program and that as at 17 October 2016 the applicant was attending a Relapse Prevention Group and individual psychology sessions. It was reported that the applicant had been abstinent for three months at that time. Her participation has been high across all interventions, her level of insight appears to have increased since attending the AODS service and she appears to be applying the concepts learnt to improve her personal situation and remain abstinent.
  7. [28]
    By report dated 14 December 2016 it was noted that it had been some time since the applicant attended a psychology session and it was considered her treatment was completed.

Material produced by the Department of Child Safety

  1. [29]
    The material from the Department of Child Safety records a child concern report. Verbal complaints were received by the Department as to the applicant and her partner being “meth-addicts”, selling drugs from the house, the applicant suffering anxiety and depression, the applicant and her partner fighting (physical and verbal) in front of the child and some days the child not going to school because the applicant and her partner are in bed all day. A motor vehicle accident was reported. The applicant’s attempted suicide was reported and the fact that the applicant and her husband were hospitalised.
  2. [30]
    The applicant’s child was reported to be placed on an informal basis with the child’s paternal aunt.
  3. [31]
    In an interview with the applicant in 2016 the Department indicated that the applicant and her partner “would likely be assessed as parents not willing and able, requiring departmental intervention” if their child was to return to their full-time care.
  4. [32]
    The applicant and her husband were referred by the Department to intensive family support services.
  5. [33]
    The Department of Child Safety material includes a report from the Logan Hospital dated 11 August 2016, which gives a detailed account of a poly-pharmacy drug overdose on 19 July 2016 and medical review on 21 July 2016. On 20 July 2016 a urine drug screen detected benzodiazepine, cannabinoids and amphetamines. I note the observation in the report that the applicant was “being minimalistic and superficial in relation to her presentation.” Numerous stressors were listed which led to herself and her husband having intent to end their lives, including high dependency on poly-substances, loss of employment, loss of house, loss of custody of son who is in the care of the applicant’s father and sister in law, marked debts and strained relationships as a consequence of heavy drug use.

Evidence

The applicant

  1. [34]
    The applicant’s evidence in chief is comprised of the application for review,[9] her life story,[10] a statement dated 22 May 2020,[11] a further statement dated 22 May 2020 together with attachments,[12] statement dated 18 July 2020[13] and an undated statement.[14] I have considered all this material. The applicant gave evidence at the hearing and was cross-examined.
  2. [35]
    The applicant is 33 years of age. She is the mother of two young children. The applicant is studying to complete a Bachelor of Nursing. As at approximately August 2016 the applicant was a heavy drug user including of methamphetamine, cannabis and other drugs. She suffered from mental illness and attempted to take her life. At that time, her husband was dealing with similar issues. At around that time the applicant gave the care of her son to her sister in law, recognising that she was unfit to care for him.
  3. [36]
    In response to the third-party material the applicant acknowledged that her drug use went further than using cannabis as she had previously asserted and that she sought help for her declining mental health.
  4. [37]
    In October 2016 the applicant was convicted of supplying dangerous drugs. She had also been charged with other offences which were not proceeded with.
  5. [38]
    It is fair to say the applicant was at rock bottom at that time of her life.
  6. [39]
    The applicant’s evidence is that since then she has stopped taking drugs, is healthy, fit and fully engaged as a mother to her children. She has undertaken counselling and treatment for her medical conditions. The applicant wishes to complete her nursing degree but requires a blue card for the purpose of working in her chosen profession.
  7. [40]
    The applicant expresses remorse for the poor choices she has made in the past and says that she now surrounds herself with supportive friends and family.
  8. [41]
    I accept that the applicant’s current circumstances are as she describes. No doubt her path to recovery has been difficult and she is to be congratulated for the progress she has made.

Witnesses for the applicant

  1. [42]
    All of the witnesses called by the applicant were aware of her criminal history and the respondent’s reasons for issuing a negative notice.
  2. [43]
    The witnesses called to give evidence were a friend and neighbour, two other friends and a previous treating general practitioner.
  3. [44]
    They each gave evidence consistent with their statements.[15]
  4. [45]
    I accept the evidence of each of the witnesses as to their current knowledge of the applicant as a healthy confident woman who is a loving mother and good friend.
  5. [46]
    I particularly note the evidence of the general practitioner set out in her report that she believes the applicant understands the grave nature of her offences. The Doctor said that she and the applicant have had many discussions on this and how persistent the applicant has had to be to restart her life and career.
  6. [47]
    The Doctor confirmed that the applicant was drug free, did not have cravings for drugs and was resilient enough to be placed in front of drugs and not be tempted.

Other evidence

  1. [48]
    Attached to the applicant’s material are reports from treating practitioners who were not called to give evidence:
    1. (a)
      An acupuncturist who records in a report dated 20 May 2020 that he has treated the applicant as needed with acupuncture, nutritional supplements, dietary advice and the Dorn method.
    2. (b)
      A Senior Psychologist, West Moreton Alcohol & Other Drug Services who reported on 9 April 2020 that the applicant completed all six modules of the Back in Control Group program to address substance use issues and that she attended individual psychology sessions. Treatment completed in December 2016.
    3. (c)
      A Psychologist who reported on 1 June 2020 that the applicant attended six sessions between 13 February 2019 and 16 October 2019. Treatment was for anxiety and depression and focussed on cognitive behaviour strategies. The Psychologist thought the applicant had shown considerable progress but was not able to ascertain whether therapy gains have been maintained.
  2. [49]
    In addition, a copy of a pathology report dated 12 June 2020 revealed negative results to a urine drug screen.
  3. [50]
    Finally, the applicant’s sister in law has given a statement dated 18 July 2020 which records that the applicant has made many positive changes in her life. She says that she knows the applicant would never give up on her journey of sobriety as she could not put her son through that again.

Submissions

Respondent’s submissions

  1. [51]
    The respondent submits and I accept that the Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[16]
  2. [52]
    I also accept that the task to be undertaken by me does not involve a weighing of risk factors against protective factors, rather those factors may be identified as part of the process of considering whether an exceptional case exists.[17] I do not accept the proposition that the Tribunal must apply additional weight to any risk factors that are established. In my view risk factors should be assessed for what they are in fact, and in terms of seriousness and likelihood of coming to pass.
  3. [53]
    The respondent submits by written submissions and orally at the hearing that:
    1. (a)
      the applicant’s personal circumstance in terms of need for a blue card to complete her nursing degree is irrelevant. I accept that submission.[18]
    2. (b)
      The totality of evidence in this case raises the possibility of a risk to children such that it would not be in the best interests of children for the applicant to be issued with a working with children clearance and a blue card.
    3. (c)
      The applicant’s offending was committed in 2016 which is recent.  The passage of time without further offending of itself is not conclusive that the risk of harm to children is reduced.[19]
    4. (d)
      The applicant’s offending relates to drug use. Drug use is harmful to the community.
    5. (e)
      The third-party material obtained by the Department reveals use of methamphetamine since 2014 and use of cannabis from 2008. Concerns were raised with the Department of Child Safety in relation to the applicant’s involvement with drugs and her ability to care for her child. Material from the West Moreton Hospital and Health Service reveal a suicide attempt in 2016 and mental health issues.
    6. (f)
      The applicant’s involvement with illicit drugs is greater than what is reflected in her criminal history.  The applicant has not been forthcoming with the extent of her drug use during these proceedings or during the assessment process of Blue Card Services which raises concerns in relation to the credibility of the applicant’s statements in these proceedings.
    7. (g)
      The material filed in the proceedings raises concerns in relation to the extent of the applicant’s drug use and the applicant’s mental health.
    8. (h)
      None of the medical evidence before the tribunal addresses insight, risk factors or triggers, protective factors and preventative strategies.
    9. (i)
      The applicant’s submissions to Blue Card Services during the assessment process attempted to minimise her offending behaviour and to shift blame onto her partner. The applicant did not fully disclose and take responsibility for her drug use until after third party material was produced to the Tribunal.
    10. (j)
      The applicant was using illicit drugs during times that she held a blue card and was working in a health care facility.
    11. (k)
      The applicant’s attempts to minimise her behaviour in her submissions and statement of evidence of 22 May 2020 demonstrates a lack of insight into the seriousness of her behaviour.
    12. (l)
      The applicant was not open about the difficulties encountered by her child when she was using drugs, for example, not being fed or not attending school.
    13. (m)
      In imposing a penalty upon conviction, it is likely the Court did not have the full history of the applicant’s drug use. Being charged did not stop the applicant using drugs, in fact use of drugs led to a suicide attempt after the date she was charged.
    14. (n)
      The applicant’s witnesses did not have full knowledge of the extent of the applicant’s drug use, although they had some knowledge.
    15. (o)
      No psychologist was made available for cross-examination. There is no evidence before the tribunal as to the treatment given to the applicant, its success and why treatment ceased.
    16. (p)
      The triggers for drug use noted to be anxiety and depression were still present in 2019 when the Psychologist provided treatment. The Psychologist does not reference the applicant’s criminal history, hospitalisation or drug use.
    17. (q)
      The applicant conceded that her treatment is ongoing and that it was not until the Blue Card was refused that she put in effort. The applicant’s evidence is that she and her husband are working hard to get better.
    18. (r)
      In relation to the applicant’s husband, no proper details have been given to the Tribunal in relation to his drug use. That influence is still in her life.
    19. (s)
      The Tribunal has no power to issue a conditional blue card. Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business, hence the need for caution in considering the matter.

Applicant’s submissions

  1. [54]
    The applicant submits that:
    1. (a)
      she is extremely remorseful about her arrest and all of her drug use. She is ashamed that she let her child down and she knows only too well the destructive effect of drugs.
    2. (b)
      In the last 12 months she has done deep healing and now keeps a journal and practises gratitude. She recognised the need for a therapist so that she could deal with her husband’s mental health issues and has undertaken counselling. She is now self-aware of her emotions and able to deal with them. She thinks about triggers and has control of her life. She does not make bad calls or put her child at risk.
    3. (c)
      It has been over four years since the conviction, and she has since sought treatment. There is no recent or relevant risk factor.
    4. (d)
      Until six to eight months ago she experienced anger and frustration but has learned to show forgiveness and self-love.
    5. (e)
      She has a lot of people wanting the best for her and she is not living her old life.
    6. (f)
      Her husband is working hard to get better.
    7. (g)
      She did not mean to mislead the tribunal in relation to her past, but just wanted to show that she is a different person.
    8. (h)
      In reply to the respondent’s submissions the applicant said that anxiety and depression are not triggers for her and that the self-healing she does is powerful.
    9. (i)
      She denies lying to her witnesses but says that she does not talk about her past all the time otherwise she would not get anywhere. She said the witnesses were confused by the respondent’s cross examination of them.
    10. (j)
      She denies that it was not until her Blue Card application was refused that she took her recovery seriously. She says that she went further at that time. It is not the case that she was living her life in the old way until the Blue Card notice.
    11. (k)
      In relation to her husband she said that she is not going to talk about him; however, he is not using drugs and is not putting their children at risk.
    12. (l)
      She denied minimising her past and disagreed that she had not done enough to reduce her risk factors.

Consideration

  1. [55]
    This matter raises more considerations than just the applicant’s criminal conviction and criminal charges. If this matter involved only the criminal conviction and criminal charges I would be inclined to consider that the applicant’s case was not exceptional, given the low penalty on conviction and the fact that no evidence was offered in relation to the charges.  In addition, the time which has passed without further criminal charges is in the applicant’s favour. Given that there has been no traffic offence since 2017 I do not consider the applicant’s traffic history is relevant as a risk to the welfare of children.
  2. [56]
    However, the context to the conviction and charges is the preceding years of heavy drug use and mental health issues. That information came to light in the third-party material. It is that information which gives the greatest cause for concern that the applicant’s case is an exceptional case.
  3. [57]
    It is not possible or necessary for all risk to be eliminated. However, given the importance of protecting children, the risk of the applicant again taking illicit drugs, suffering a major mental health episode, or engaging in criminal behaviour should be found as low, for me to then find that the applicant’s case is not exceptional within the terms of the WWC Act.
  4. [58]
    I am satisfied that the applicant has made considerable progress in turning her life around from the difficulties she confronted in 2016. On the basis of the evidence of her witnesses and the evident support offered to her by her friends I am satisfied that there are some protective measures available to the applicant to mitigate the risk of relapse into drug abuse, criminal conduct and further mental health problems.
  5. [59]
    The Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations.[20] I have not taken into account the fact that the applicant is seeking to complete her nursing studies and that she requires a Blue Card as a result.
  6. [60]
    Despite the applicant’s current circumstances I am concerned by a number of matters.
  7. [61]
    First, the applicant was not honest in her submissions to the respondent and to this Tribunal. The true picture recorded in the third-party material is very serious. The applicant in her life history filed in the Tribunal asserts that she only self-medicated cannabis to control back pain and that she had not used cannabis in her earlier life. She made no mention of methamphetamine use or the extent of her cannabis use.
  8. [62]
    It was only after the third-party material was produced that the applicant acknowledged the extent of her drug use and mental health problems.
  9. [63]
    This outright dishonesty affects my ability to confidently rely on the applicant’s evidence to find that she has overcome her drug use and mental health issues, so that she is not at risk of relapse.
  10. [64]
    The problem is compounded by the second area of concern, that is, there is no independent, objective evidence from a medical practitioner who is fully informed as to the applicant’s past drug use and mental health issues, and who can offer an expert opinion to the Tribunal in relation to the matters set out in the Tribunal’s directions made 30 March 2020.  Those matters are important to my consideration of the level of risk of relapse and consequent risk to the welfare of children who may come into contact with the applicant.  The factors include:
    1. (a)
      the extent to which the applicant has insight into her offending behaviours and its impact on society, and any children associated with the applicant;
    2. (b)
      what risk factors or triggers, if any, continue to be present which could contribute a risk of further offending behaviours;
    3. (c)
      what protective factors, if any, are present to reduce the risk of further offending behaviours;
    4. (d)
      what preventative strategies, if any, does the applicant use to reduce her risk of further offending.
  11. [65]
    I accept the respondent’s submission that it is difficult to judge the level of risk associated with the applicant because no psychologist was called to give evidence and to be cross-examined. There is no independent evidence as to the treatment given to the applicant, the success of the treatment and why treatment ceased.
  12. [66]
    The applicant’s general practitioner addressed the question of insight and expressed a view that the applicant was unlikely to relapse into drug use, however I am not satisfied that the doctor has the necessary expertise to express an opinion in relation to likelihood of relapse. I think that given the extent of the applicant’s drug use the question would have been more reliably addressed by a psychologist or psychiatrist experienced in the treatment of methamphetamine and other drug use.
  13. [67]
    The general practitioner’s evidence was also lacking in detail in relation to the nature and extent of treatment undertaken by the applicant and the preventative strategies she utilises to reduce her risk of relapse.
  14. [68]
    My third concern is that although the applicant reached her low point in 2016 and that  a number of years have since passed, the issues the applicant confronted were very serious including hospitalisation, a suicide attempt, mental health issues, heavy methamphetamine and other drugs use and the need for assistance in relation to parenting of her child. I am not certain that those issues can be overcome with the relatively limited professional help the applicant has accessed. I note the applicant’s own evidence that until only six to eight months before the hearing she was experiencing anger and frustration.
  15. [69]
    Lastly the third-party material points to the applicant’s husband also experiencing mental health problems and being a heavy methamphetamine user. I understand the applicant’s reluctance to speak about or for her husband, but the fact remains that her husband is a significant presence in her life. It would have been helpful in assessing the level of risk of the applicant relapsing into drug use for evidence to have been given about the preventative strategies undertaken by the applicant with specific reference to any influence her husband may have over her conduct should he relapse into drug use.
  16. [70]
    For all these reasons I am not satisfied on the evidence, that the applicant’s case is not exceptional. Because of the state of the evidence I cannot find on the balance of probabilities that the applicant’s risk of relapse into drug taking and criminal conduct is low.
  17. [71]
    On the evidence I accept the submissions of the respondent in relation to the risk factors in this case and consider that it is not appropriate at this time for the decision to be set aside.
  18. [72]
    I confirm the decision of the respondent made 2 December 2019.
  19. [73]
    In conducting this review regard has been had to the Human Rights Act 2019 (Qld). I am satisfied that this decision is compatible with human rights and that to the extent there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of that Act.[21]
  20. [74]
    Finally, I consider that it is not in the public interest to release identifying information regarding the applicant and any witnesses for the applicant. Accordingly, this decision is to be published in a de-identified format. Pursuant to s 66 of the QCAT Act I order that publication of information that may enable the applicant and witnesses to be identified is prohibited.

Footnotes

[1] WWC Act, s 221(2).

[2] WWC Act, s 580.

[3] QCAT Act, s 19, s 20.

[4] WWC Act, s 6.

[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [33].

[6] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[7] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[8] WWC Act, Schedules 2 3, 4 and 5.

[9] Exhibit 1.

[10] Exhibit 2.

[11] Exhibit 3.

[12] Exhibit 4.

[13] Exhibit 5.

[14] Exhibit 6.

[15] Exhibit 7; Exhibit 8; Exhibit 9; Exhibit 10.

[16] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, citing with authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[17]       Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6], [7].

[18] Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109].

[19] Commissioner for Children and Young People and Child Guardian v Lister (No2) [2011] QCATA 87, [55].

[20] AX v Commissioner for Children and Young People and Child Guardian (No2) [2012] QCATA 248 relying on Chief Executive Officer, Department for Child Protection v Scott (No2) [2008] WASCA 171.

[21] Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58.

Close

Editorial Notes

  • Published Case Name:

    HK v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    HK v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2021] QCAT 130

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    20 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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